Mst. DELTEX COURIER SERVICE Versus SAJID IMRAN GILL

ATIR MAHMOOD, J.--- Brief facts of the case are that the respondent No.1 filed a complaint under Section 13 of Punjab Consumer Protection Act, 2005 (the "Act") against the appellant in the District Consumer Court, Faisalabad alleging that he engaged the services of appellant company for delivery of a packet worth Rs.45,000/- to Khurram Qadri case of Paradize Printing Press, Karachi and paid delivery charges to the tune of Rs.30/- to the appellant company who issued a receipt having consignment note No.12258 dated 29.09.2007 with the assurance that delivery of said packet will be made within 48-days at the destination which on inquiry after three days of receipt, found undelivered, therefore, respondent No.1 approached the appellant's company who categorically denied receiving of said parcel from respondent and issuance of receipt No.12258 dated 29.09.2007. Respondent No.1 resisted the complaint by filing written statement. After hearing both sides, learned Consumer Court allowed complaint of the respondent while directing the appellant to pay Rs.56,000/- as loss to the value of consignment alongwith litigation charges vide order dated 10.07.2008. Hence, this appeal has been filed.

2. Learned counsel for the appellant has contended that the complaint was badly barred by time as it was not filed within 30 days of alleged cause of action; that no evidence about the value of C.D. Software/alleged consignment was produced by respondent No.1; that the order of learned consumer court is against the law, therefore, it cannot sustain. Learned counsel for the appellant accordingly prays that this appeal be allowed, the impugned order be set aside and the complaint of respondent No.1 be dismissed. He relied upon "Muhammad Azam v. National Bank of Pakistan and others" (PLD 2013 Lahore 73) and "Messrs Dawlance United Refrigeration Industries Private Ltd. through Branch Coordinator v. Muhammad Asim Chaudhry" (PLD 2016 Lahore 425).

3. On the other hand, learned counsel for respondent No.1 has hotly opposed this appeal and fully supported the impugned order. According to him, the complaint was filed within time limitation and it was not time barred, therefore, this appeal is liable to be dismissed.

4. Arguments heard. Record perused.

5. Only two points have been put before this Court for adjudication. Firstly, as to whether the complaint was filed within limitation of time. Secondly, as to whether the valuation of the alleged consignment had been proved through evidence by the appellant.

6. According to the respondent No.1, he hired the service of the appellant for sending a packet containing a "C.D./Software" to one Khurram Qadri at Karachi vide receipt issued on 29.09.2007 which was not delivered on the destination. On 01.10.2007, the respondent No.1 approached the appellant and protested upon non-delivery of parcel but the appellant company could not offer any cogent reason about non-delivery of said consignment to the addressee inspite of the fact that a request was made by respondent No.1 to inquire the matter. However, when grievance of the respondent was not redressed, he issued legal notice dated 22.11.2007 and then approached the consumer Court through the complaint on 15.12.2007. The plea of learned counsel for the appellant is that the cause of action accrued to the respondent on 01.10.2007, when he first approached the appellant, therefore, it was the starting point for counting limitation whereas the complaint was filed on 15.12.2007 with delay of about fifteen days without showing sufficient cause through filing a proper application for condonation of delay, therefore, not only the complaint was barred by time but also the delay in filing the complaint could not be condoned. On the other hand, learned counsel for the respondent submits that the time was to start after expiry of 15 days given by the appellant itself.

7. According to my understanding of law, the accrual of cause of action cannot be restricted to the date when some wrong is done with the complainant/consumer or it comes in his knowledge. As a matter of fact cause of action only arises when the grievance of the consumer is put before seller/service provider or the manufacturer (as the case may be) and there is a refusal from their side to redress the grievance of the consumer. In order to reach this conclusion the provision of Section 28 of the Punjab Consumer Protection Act, 2005 (hereinafter called "the Act") is reproduced as under:

"28. Settlement of Claims.- (1) A consumer who has suffered damage, or Authority in other cases, shall, by written notice, call upon a manufacturer or provider of services that a product or service is defective or faulty, or the conduct of the manufacturer or service provider is in contravention of the provisions of this Act and he should remedy the defects or give damages where the consumer has suffered damage, or cease to contravene the provisions of this Act.

(2) The manufacturer or service provider shall, within fifteen days of the receipt of the notice, reply thereto.

(3) No claim shall be entertained by a Consumer Court unless the consumer or the Authority has given notice under subsection (1) and provides proof that the notice was duly delivered but the manufacturer or service provider has not responded thereto.

(4) A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action:

Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period:

Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services.

Bare reading of the above provision of law makes it abundantly clear that no time is fixed by the legislature to serve a notice, in writing, upon the manufacturer/service provider and when a notice is served upon him, the service provider/manufacturer may redress the grievance of the consumer. If the grievance is redressed, no cause of action arises but if not so then written reply of the notices is to be given within 15-days of the receipt of notice. If the contention of the appellant that cause of action arose when the consignment sent by the respondent did not reach the destination and the respondent received the said information, then the subsections (2) and (3) of Section 28 of the Act, referred hereinabove, will become redundant for all practical purposes. It depicts that the respondent issued notice on 22.11.2007 which was to be replied within fifteen days from its receipt. Therefore, the terminus a quo for counting the time limitation was the date when the time of fifteen days expired after receiving legal notice. The appellant in his cross-examination admitted that he received the notice but he did not reply. If the date of receiving the notice is considered as 22.11.2007 which in fact was the date of sending of the notice, then the period of 15-days expired on 07.12.2007 which will be the date for arising of the cause of action. Therefore, the complaint filed on 15.12.2007 was within the time limitation of 30 days provided by subsection (4) of section 28 of the Act.

7. So far as the second question as to whether the valuation of the alleged consignment had been proved through evidence by the appellant or not, is concerned, the plea of learned counsel for respondent No.1 was that he handed over a packet of Compact Disc/Software having intellectual work done by respondent No.1 and his staff amounting to Rs.45,000/- which was not delivered at the destination whereas the appellant flatly denied this aspect. In Ex.D-W-1 Shabbir Hussain, DW-1 deposed that:

Whereas in cross-examination he stated as under:

It has also been stated that:

From above, it is very much clear that there are contradictory versions taken in Ex.D-W-1 and in cross examination. At one place, he stated that no one approached the appellant for non-delivery of parcel whereas at other place he stated that shipment was not traceable, it means the respondent No.1 approached the appellant, put his grievance and appellant found that shipment was not traceable. Furthermore, during cross examination, the appellant had not put question with regard to the valuation of parcel, therefore, presumption of truth goes in favour of respondent No.1. The learned court below has rightly passed the impugned order and no illegality or irregularity has been committed therein.

8. For the aforementioned reasons, this appeal is bereft of any merit, hence dismissed with no order as to cost.

KMZ/D-3/L Appeal dismissed.